Justice Stephen Breyer risks making a historic blunder

United States Supreme Court Justice Stephen Breyer is facing calls to retire before the 2022 congressional elections so that his successor can be confirmed while the Democrats have control of the United States Senate. The 82-year-old Breyer has signaled he's reluctant to retire because he doesn't want to be perceived as partisan.

But surely the principles that guide a judge on the bench are also relevant. Breyer's career can be defined by the defense of what he calls "active liberty," which boils down to democracy, the constitutional principle that the people should control government.

Breyer's judicial philosophy can be distilled to two key ideas. One, that the purpose of the Constitution is to preserve democracy and judges should interpret it in that light. Two that judges should take the practical consequences of their decisions into account. As a jurist, Breyer is often described as the most pragmatic justice. All of these are arguments for why the 82-year-old Breyer should retire immediately.

Breyer is famous for taking practical realities into account. In an ideal world, Supreme Court justices would have confidence that any president and any Senate would confirm a successor who would vote to uphold the basic norms of democracy. But we don't live in that world. In ours, one of the two institutional parties has rejected democracy.

Breyer is famous for saying justices shouldn't be "junior varsity politicians." But that's just the obvious truism that judges should decide cases on their legal merits, as opposed to fulfilling a policy wishlist for politicians who confirmed them, or imposing their own desired policies based on spurious arguments. For example, a judge shouldn't rule that a law is constitutional just because they like snowy owls or hate gambling. If the people elect legislators who seek to protect snowy owls or ban gambling, it's not for an unelected judge to second-guess that. It's the active liberty principle at work: People should be able to control the government through their elected legislators without worrying about unelected judges usurping that power.

Timing one's retirement at the age of 82 to secure one's judicial legacy, or indeed, to secure democracy itself, is the opposite of arbitrarily imposing one's policy preferences. A Supreme Court justice can step down for any reason. Surely, for Stephen Breyer, defending the active liberty of Americans would be a worthy reason.

Other modern Justices have more-or-less openly brokered their successors or implied it. Justice Anthony Kennedy tapped former clerk Brett Kavanaugh. Ruth Bader Ginsburg justified eking out a few more years by arguing that Hillary Clinton would be elected in 2016, implying that she planned to time her retirement accordingly.

Democracy is under assault by the Republican Party. Donald Trump was impeached for trying to overturn a free and fair election. The GOP is accelerating his anti-democratic ideology in his absence. Recognizing an anti-democratic movement isn't partisanship, it's pragmatism. David Atkins called the question in the Monthly this week: "What happens when Republicans simply refuse to certify Democratic wins?"

Joe Biden won the presidency with more than 81 million votes in what experts called the cleanest, smoothest election in American history, Atkins said. Trump tried to steal the 2020 election repeatedly, huddling with Republican state lawmakers, scheming to get GOP-controlled state legislatures to overturn the will of their voters, demanding that the Georgia Secretary of State find imaginary extra votes for him, and spreading outrageous lies about voter fraud. Trump finally called his supporters to Washington, DC, to disrupt certification of the electoral count. "It was a physical coup attempt designed to intimidate Congress into enforcing a legislative coup," Atkins said.

After the mob rampaged the Capitol, seven GOP senators voted for Trump's legislative coup. Forty-three GOP senators voted to acquit him for instigating the putsch. If Breyer doesn't retire soon, these people may end up confirming his successor.

The terrifying reality is that Republicans no longer feel compelled to acquiesce to election results. No matter how clean the contest, or how overwhelming the margin, there's always a conspiracy theory to explain why the GOP candidate is the winner. There doesn't even have to be a theory. Insinuation backed by a narrative of Democratic perfidy is enough. The fringe spreads lies and poisons faith in democracy, and more respectable Republicans are pointing to baseless fears as reason for saying that democracy must be further restricted to restore confidence in the process.

Trump is exiled to Mar-a-Lago, but his hold on the party remains unshakable. Leaders like Lindsey Graham and Kevin McCarthy have made clear the party needs to toe the line in order to remain viable. And they're not wrong: Trump is holding the GOP hostage. He could destroy the GOP electorally by launching a third party.

Republicans who stand up for democracy are being systematically purged from the party. This week, Wyoming Congresswoman Liz Cheney will be ousted as conference chair by ambitious former moderate New York Congresswoman Elise Stefanik who correctly sees the way to rise in today's GOP is to embrace Trump's Big Lie.

Time is of the essence. The Senate is split 50-50 with Vice President Harris casting the deciding vote. A single death or resignation could tip the balance. What's more, the ruling party usually loses seats in the midterm elections. So Democratic control of the Senate is likely to be fleeting. And Democrats are at a permanent structural disadvantage to win the Senate back should they lose it. Republicans have also made it clear since the theft of Merrick Garland's Supreme Court seat that they will never confirm a Democratic president's nominee as long as they control the Senate.

Many hoped that Republican anti-democratic extremism would ebb after Trump, but it only appears to be accelerating. If Republicans get to pick the next nominee, they will likely pick an even more extreme candidate. By stepping down, Breyer would not be playing politics. Rather, he'd be honoring values that have defined his judicial career.